Expert Witness Journal Dec 24 - Journal - Page 101
Ready, Sett, Stop: Lessons from a Doomed
Prosecution Under the Protection of Badgers
Act 1992 in R (DPP) v Northampton Magistrates
Court [2024] EWHC 2324 (Admin)
A recent High Court decision in an application for Judicial Review considers two issues highly
relevant to any prosecutor: the risks of commencing a prosecution without the necessary evidence,
and the correct test for the making of a costs order under s.19 of the Prosecution of Offences Act
1985.
Background
The Interested Parties, Mark Beaty and Gareth
Phillips, were accused of interfering with badger setts
during land clearance activities and charged with offences under section 3 of the Protection of Badgers
Act 1992 (“POBA”).
been obtained prior to prosecution, and the decision
to charge without first having obtained that evidence
was an “unnecessary act or omission” for the purposes
of s.19. The District Judge agreed and ordered that
the Claimant pay the Interested Parties costs in the
sum of £37,909.04.
Section 3 of POBA creates the offence of interfering
with badger setts and specifies the ways in which an
offence can be committed (namely, by damaging, destroying or obstructing access to a sett, by causing a
dog to enter a sett, or by disturbing a badger when it
is occupying a sett). Section 14 defines a sett as any
structure or place which displays signs of “current use
by a badger” (emphasis added).
The DPP sought judicial review on two grounds:
1. That the District Judge had erred in concluding
that the Claimant should have obtained expert
evidence before bringing charges under POBA, and
2. That even if the District Judge had been correct in
his conclusion on point 1, the error was not such as to
justify the making of a costs order, and the District
Judge had erred in his understanding of the law.
The prosecution failed to obtain expert evidence to
confirm that a badger sett was in use at the site at the
relevant time, relying instead on statements from one
RSPCA inspector and two members of the Northamptonshire Badger Group (a voluntary organisation that
in addition to rescuing injured badgers and advocating for their protection, collects and records data on
local mustelids). The prosecution applied the Full
Code Test and concluded that it was met on the basis
of this evidence.
High Court Decision
On the first ground, the High Court found that while
in some cases lay evidence may suffice, expert testimony is usually needed to prove the technical aspects
of offences involving wildlife. The Court found that in
this specific case it was critical to establish that the badger sett in question was active, and that without expert evidence the Claimant could not properly have
concluded that there was a real prospect of a conviction. Therefore, the District Judge had been correct in
finding that the prosecution’s failure to secure expert
evidence made the charges baseless.
Shortly before the trial was due to start, the defence
served an expert report which argued that the sett in
question was a subordinate sett that was in “casual
use”. Accepting that their witnesses could not be considered expert witnesses, the prosecution requested
an adjournment to obtain their own expert report,
which was granted. The prosecution’s expert, Mr.
Pearce, concluded that there was an active sett at the
site and that the sett had been there for many years.
The issues appeared black and white. However, the
experts then provided a joint report in which they
agreed that they could not “categorically state or
prove that the sett was active or inactive when the
event occurred in March 2022”.
On the second ground concerning the award of costs
under s.19(1) of the 1985 Act, the High Court reviewed the correct approach to the making of such an
order, as summarised in R v Cornish & Maidstone and
Tunbridge Wells NHS Trust [2016] EWHC 779 (QB) at
[16]:
“From these various authorities therefore, I consider
that the principles to be applied in respect of an application under s.19 and Regulation 3 are as follows:
(a) Simply because a prosecution fails, even if the
defendant is found to have no case to answer, does not
of itself overcome the threshold criteria of s.19 (R v P,
Evans).
Several months later the prosecution was discontinued, and the defence applied for costs under section
19 of the Prosecution of Offences Act 1985 and regulation 3 of the Costs in Criminal Cases (General) Regulations 1986 on the grounds that the charges were
improper, largely because the expert evidence on
whether the site was an active badger sett had not
EXPERT WITNESS JOURNAL
(b) Improper conduct means an act or omission that
would not have occurred if the party concerned had
conducted his case properly (Denning).
(c) The test is one of impropriety, not merely
unreasonableness (Counsell). The conduct of the
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